OVERRIDES SECTION 433A OF CODE OF CRIMINAL PROCEDURE (CRPC)

• Recently, the Supreme Court (SC) held that the Governor’s power to pardon overrides Section 433A of Code of Criminal Procedure (CrPC).
• Earlier in January 2021, in a case of mercy petition, the SC noted that the Governor cannot reject the state’s recommendation but there is no time prescribed to take a decision.

Important points

• SC held that the Governor of a State can pardon prisoners, even before they have served a minimum 14 years of prison sentence.
• The Governor’s power to pardon overrides a provision in the CrPC Section 433A which mandates that a prisoner’s sentence can be remitted only after 14 years of jail.
• Section 433A states that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
• Section 433-A cannot and does not in any way affect the constitutional power conferred on the President/Governor to grant pardon under Articles 72 or 161 of the Constitution.
• The court noted that the sovereign power of a Governor to pardon a prisoner under Article 161 is actually exercised by the State government and not the Governor on his own.
• The advice of the appropriate government binds the Head of the State.

Pardoning Power

• Under Article 72 of the Constitution, the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.
• The President cannot exercise his power of pardon independent of the government.
• In several cases, the SC has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas. These include Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994.
• Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.

Governor’s Pardoning Power:

The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

SOURCE: THE HINDU,THE ECONOMIC TIMES,MINT